This latest decision from the U.S. Court of Appeals for the Eleventh Circuit on sexual orientation discrimination is weird. A panel of the court found 2-1 in Evans v. Georgia Regional Hospital that the plaintiff did not have a valid Title VII claim against her employer for sexual orientation discrimination. Whether you agree with it or not, the panel opinion was fairly straightforward. Judge Jose Martinez, a federal judge from Florida who was sitting by designation, stuck to the case law saying said that sexual orientation is not "sex discrimination" prohibited by Title VII.

But then, Judge William Pryor -- a very respected jurist who was on President Trump's list of 20 candidates to fill the Supreme Court seat made vacant by the death of Justice Antonin Scalia, but who also caught a lot of grief from conservatives when he joined in holding in Glenn v. Brumby that Title VII protected transgender individuals from discrimination -- wrote a concurrence that I found unpersuasive.

"Hmmm . . . "

As I've reported before, the position taken by the Equal Employment Opportunity Commission is that discrimination based on sexual orientation is a form of unlawful "sex stereotyping." The "stereotype" is that a woman ought to be sexually attracted to a man, and vice versa. Gay and lesbian people don't fit that stereotype. Therefore, if an employer takes action against a gay or lesbian employee or applicant because of the individual's sexual orientation, the employer is doing it because of stereotypical ideas about who men and women should be sexually attracted to.

I don't agree 100 percent with the EEOC's position, but I think it's a reasonable position, and an arguable one.

"This opinion was a little too weird for us."

But Judge Pryor says that the EEOC's position "stereotypes all gay individuals" because it fails to take into account that they all have their own interests and experiences. I don't see how the EEOC's position "stereotypes" gay and lesbian people. Being sexually attracted to people of your own gender is what makes you gay or a lesbian. By definition. It's a fact, not a stereotype. But that doesn't mean that all gay and lesbian people are alike. With respect to Judge Pryor, I think he was trying to defend what he probably knows is almost impossible to defend from a legal or logical standpoint: Once you find sex discrimination against people who "act gay" or transgender individuals based on "sex stereotyping," then it's very hard to argue that discrimination based on pure sexual orientation should be treated differently. The fine line-drawing becomes too fine, as acknowledged in the now-vacated opinion by Judge Ilana Rovner of the U.S. Court of Appeals for the Seventh Circuit in Hively v. Ivy Tech.

"My head is spinning, man!"

OK, on to the dissent. The dissent by Judge Robin Rosenbaum, an Obama appointee, went on at length and argued quite persuasively in favor of the EEOC's position. According to Judge Rosenbaum, when Title VII was first enacted, the only "stereotyping" that was unlawful was "ascriptive" stereotyping. This would include things like an employer who refused to hire a woman for a job that required travel based on the stereotype that women wouldn't want to travel. Or an employer who fired an employee after she announced her pregnancy because the employer thought pregnant women couldn't do the job and would just quit after the baby was born anyway. In other words, the woman is discriminated against because the employer believes she will act exactly the way that a stereotypical woman is expected to act.

But after the Supreme Court recognized valid Title VII claims in Price Waterhouse v. Hopkins (involving an accountant who was denied partnership because she wasn't "feminine" enough) and Oncale v. Sundowner Offshore Services, Inc. (involving a male worker on an offshore oil rig who was harassed by other men because he wasn't "masculine" enough), it became clear that Title VII also prohibited "prescriptive" sex stereotyping. Prescriptive sex stereotyping occurs when an employer discriminates because the woman doesn't act (or look) like a stereotypical woman, or the man doesn't act (or look) like a stereotypical man.

And prescriptive sex stereotyping is what brings us to the current day, when most courts say it's a violation of Title VII to discriminate against -- for example -- a transgender man for not acting or looking like a woman, or a transgender woman for not acting or looking like a man.

"I think my head is going to explode."

Judge Rosenbaum acknowledged that Congress probably didn't intend to prohibit sexual orientation discrimination in 1964 when it enacted Title VII, but she said that the prohibition on stereotyping was a legitimate evolution of our concept of sex discrimination. She also said that it makes no sense to prohibit virtually every type of sex stereotyping except stereotyping that is based on sexual orientation.

Doing so leads to the bizarre result that if a gay person behaves in a "stereotypically gay" manner and is discriminated against for that, he or she might have a valid Title VII claim for sex stereotyping, but if the gay person comes across as "heterosexual," then he or she would not have a claim. For example, a stereotypically "feminine" lesbian would have no legal recourse under Title VII if she were fired for being a lesbian.

I've always argued that Title VII did not prohibit sexual orientation discrimination, and I'm not convinced that Title VII was meant to address any discrimination based on LGBT status or "stereotyping." That does not mean that I favor LGBT discrimination (I do not), and it doesn't mean that Congress can't enact LGBT protections. But if one accepts that Title VII protects the "T" in LBGT, then in my opinion Judge Rosenbaum has the better argument on the "LBG" part, too.

https://www.youtube.com/watch?v=2q3bke37Ugs

In my opinion, Judge Rosenbaum's dissent won the day. But then she ended with an homage to Free to Be . . . You and Me (what?) that included an almost half-page-long footnote and discussed it as authoritatively as if it were binding Supreme Court precedent.

(Although I'd forgotten that Michael Jackson was in that show - pretty cool.)

Maybe the 11th Circuit panel was just having a bad day. I hope the entire court will agree to rehear the case, as Judge Rosenbaum suggested it should.

(Meanwhile, Congress, please consider taking some action to put us all out of our misery. And, employers, keep on enforcing your internal policies against discrimination or harassment of LGBT individuals and complying with any state laws that may apply to you.)

Robin has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, the Equal Pay Act ...

Robin Shea has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). Continue Reading